Bill restricting sexually explicit performances in front of children heads to the governor

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The Texas Legislature gave final approval Sunday to a bill that will criminalize performers that put on sexually explicit shows in front of children as well as any businesses that host them.

Originally designed as legislation to restrict minors from attending certain drag shows, lawmakers agreed on bill language that removed direct reference to drag performers just before an end-of-day deadline. The bill now goes to Gov. Greg Abbott’s desk.

Under Senate Bill 12, business owners would face a $10,000 fine for hosting sexually explicit performances in which someone is nude or appeals to the “prurient interest in sex.” Performers caught violating the proposed restriction could be slapped with a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $4,000 fine.

After lawmakers from both chambers met in a conference committee to hash out the differences between their versions of the bill, the House and Senate released a new one that expanded the penal code’s definition of sexual conduct. The bill classifies as sexual conduct the use of “accessories or prosthetics that exaggerate male or female sexual characteristics,” accompanied with sexual gesticulations.

Advocates said this addition is aimed at drag queens’ props and costumes, which is evidence that lawmakers are still targeting the LGBTQ community.

Rep. Matt Shaheen, R-Plano, amended the legislation in the House by removing explicit reference to drag. Shaheen told The Texas Tribune that members had viewed videos of performances in which children were exposed to “lewd, disgusting, inappropriate stuff.” He said the updated bill addresses what was in those videos. Shaheen did not specify which videos concerned lawmakers.

Sen. Bryan Hughes, R-Mineola, authored SB 12 after a small but loud group of activists and extremist groups fueled anti-drag panic by filming drag shows and posting the videos on social media. Those groups characterized all drag as inherently sexual regardless of the content or audience, which resonated with top GOP leaders in the state, including Lt. Gov. Dan Patrick.

Advocates say the revisions to the legislation still target drag, even if those types of performances aren’t directly mentioned in the bill.

Brigitte Bandit, an Austin-based drag performer, criticized the addition of “accessories or prosthetics” to the bill. Drag artists performing in front of children don’t wear sexually explicit costumes, Bandit said, adding that this bill creates a lot of confusion over what is and isn’t acceptable to do at drag shows.

“Is me wearing a padded bra going to be [considered] enhancing sexual features?” Bandit asked. “It’s still really vague but it’s still geared to try to target drag performance, which is what this bill has been trying to do this entire time, right?”

Shaheen said that including direct reference to drag performers wasn’t necessary to the intent of the bill, which was to restrict children from seeing sexually explicit material.

“You want it to cover inappropriate drag shows, but you [also] want it to cover if a stripper starts doing stuff in front of a child,” Shaheen said.

Rep. Mary González, D-Clint, spoke against the bill Sunday just before the House gave it final approval in a 87-54 vote. She criticized the removal of language that previously narrowed the bill’s enforcement to only businesses. González warned that the bill’s vague language could lead to a “domino effect” of consequences.

“The broadness could negatively implicate even the Dallas Cowboy cheerleaders,” said González. “It can go into your homes and say what is allowed in your homes after the lines ‘commercial enterprise’ were stricken out.”

During a House hearing on SB 12, Democrats questioned whether the bill’s language would also ensnare restaurants like Twin Peaks that feature scantily clad servers. Shaheen said the way the bill is written exempts these types of performances.

LGBTQ lawmakers applauded the removal of the direct reference to drag performers. But advocates fear the phrase “prurient interest in sex” could be interpreted broadly since Texas law doesn’t have a clear definition of the term, said Brian Klosterboer, an attorney with the American Civil Liberties Union of Texas who testified against the bill in a House committee.

According to the U.S. Supreme Court, the term is defined as “erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion,” though the language’s interpretation varies by community.

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